United States District Court, S.D. Florida
FIOR PICHARDO DE VELOZ and CESAR CRISTOBAL VELOZ TIBURCIO, Plaintiffs,
MIAMI-DADE COUNTY, et al., Defendants.
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Defendants,
Miami-Dade County, the Public Health Trust, Miami-Dade
Corrections and Rehabilitation, Daniel Junior, Officer Audrey
Morman, Sergeant Regina Price, Officer Kimberly Jones,
Officer Tavarez Carter, Corporal Travarri Johnson, Carlos A.
Migoya, Dr. Fredesvindo Rodriguez-Garcia, and Nurse Fatu
Kamara Harris's Motion to Dismiss [ECF No. 75] filed
February 23, 2017. Plaintiffs, Fior Pichardo de Veloz and
Cesar Cristobal Veloz Tiburcio, filed their Response [ECF No.
83] on March 23, 2017; to which Defendants filed a Reply [ECF
No. 91] on April 6, 2017. The Court has carefully considered
the parties' written submissions, the record, and
bring this suit seeking damages under 42 U.S.C. section 1983
and on various state law theories against Defendants for
injuries sustained by Fior Pichardo de Veloz during her time
in the custody of the Miami-Dade Corrections and
Rehabilitation Department (“MDCR”). (See
generally Second Amended Complaint [ECF No. 40]). On
November 4, 2013, Pichardo traveled from the Dominican
Republic to Miami for a family visit. (See Id.
¶ 3). At the time, Pichardo was 50 years old and
undergoing hormone replacement therapy as prescribed by her
doctor to address the symptoms of menopause. (See
Id. ¶¶ 3 (citation omitted), 21). Pichardo
also suffered from high blood pressure. (See Id.
¶ 3 (citation omitted)).
she arrived at Miami International Airport, Pichardo was
arrested on an outstanding warrant and booked into the Turner
Guilford Knight Correctional Center (“TGK”).
(See Id. (citations omitted); see also
Resp. 2). Upon her arrival at TGK, a non-defendant officer
conducted a strip search of Pichardo at 7:17 p.m.,
“look[ing] at [the inmate's] entire body and
mak[ing] sure there [was] nothing inserted up the
reproductive area.” (2d. Am. Compl. ¶ 24 (citation
omitted; second alteration in original)). Strip searches are
directed by corrections officers although medical staff is
often present. (See Id. ¶ 32 (citation
omitted)). According to the officer who conducted the search,
she “did not notice anything abnormal.”
(Id. ¶ 24).
Pichardo's history of high blood pressure, Defendant
Officer Kimberly Jones escorted her to the medical unit for
evaluation later that night. (See Id. ¶ 25).
Upon arrival at the medical unit, at approximately midnight
on November 5 (see SIAB Mem. ¶ 36), Pichardo
was placed in a cell with other female inmates (see
2d Am. Compl. ¶ 25). Defendant Officer Audrey Morman was
working in the medical unit. (See id.). Prior to
seeing or interacting with Pichardo, Defendant Nurse Harris
approached Officer Morman's desk to question her about
Pichardo's sex, apparently based on a note in
Pichardo's file regarding hormone replacement therapy.
(See id.; see also Mot., Ex. 3, Statement
of Officer Morman [ECF No. 75-3] 6:14-7:5). Nurse Harris
indicated she believed Pichardo might be male because she was
undergoing hormone replacement therapy. (See Morman
Statement 7:2-20). Officer Morman pointed out Pichardo's
file listed Pichardo as female and explained she believed
Pichardo to be female, but Nurse Harris stated she would
nevertheless “check her out.” (Id.
Morman accompanied Nurse Harris to retrieve Pichardo from the
cell for her examination. (See Id. 8:23-9:2). Nurse
Harris then asked Pichardo if she was female and had
“female parts, ” and a visibly offended Pichardo
replied she was. (Id. 9:9-16; see also 2d
Am. Compl. ¶ 26).
Harris escorted Pichardo into the examination room; Officer
Morman did not accompany them. (See 2d Am. Compl.
¶ 27). While in the examination room, Pichardo did not
remove her clothes. (See id.) According to the
Second Amended Complaint and SIAB Memorandum, neither Nurse
Harris nor the physician on duty, Dr. Fredesvindo
Rodriguez-Garcia, physically examined Pichardo. (See
SIAB Mem. ¶¶ 39, 43; see also 2d Am.
Compl. ¶¶ 31 (citation omitted), 50 (citation
omitted)). Only Dr. Rodriguez-Garcia was present while
Pichardo was in the examination room. (See 2d Am.
Compl. ¶ 32 (citation omitted); see also SIAB
Mem. ¶ 43).
the examination, Nurse Harris told Officer Morman,
“everything fell out, ” by which she meant
“penis, testicles.” (2d Am. Compl. ¶ 27
(citation, internal quotation marks omitted); Morman
Statement 11:2-8). Officer Morman explained she believed
Pichardo appeared to be female, but Nurse Harris insisted
Pichardo was a male. (See 2d Am. Compl. ¶ 27;
Morman Statement 11:2-8).
Morman reviewed Pichardo's file, confirmed she was
strip-searched during booking, and observed the file did not
note any issues regarding Pichardo's classification as a
female during the strip search. (See 2d Am. Compl.
¶ 28 (citations omitted)). Officer Morman then called
her supervisor, Defendant Sergeant Regina Price, to explain
the situation. (See Id. ¶ 29). Sgt. Price also
apparently questioned whether Pichardo was male but
nevertheless gave instructions to have Pichardo taken to an
all-male cell. (See Id. (citation omitted)).
her return to the examination unit, Officer Jones - the
escorting officer - was informed of the change in the
determination of Pichardo's sex. (See Id. ¶
30 (citation omitted)). Officer Jones asked Nurse Harris two
to three times whether she had strip-searched or physically
checked Pichardo to determine whether Pichardo was a male.
(See Id. (citation omitted); Mot., Ex. 2, Statement
of Officer Jones [ECF No. 75-2] 7:15-8:14). Nurse Harris did
not verbally confirm she physically examined Mrs. Pichardo,
but finally replied, “she's a man.” (Jones
Statement 8:2-3, 8:9-17).
Jones, apparently still doubtful of the correctness of Nurse
Harris's statements, contacted her supervisor, Sgt.
Price, for guidance. (See Id. 15:17-16:3). Sgt.
Price directed Officer Jones to contact Booking and advise
the department of the change in Pichardo's sex
determination. (See Id. 16:5-9). Officer Jones
followed Sgt. Price's orders and notified Booking of the
change. (See 2d Am. Compl. ¶ 35). A Booking
officer changed Pichardo's file without first reviewing
any supporting documentation. (See id.).
the change to her file, Pichardo was transferred to Metro
West, an all-male facility. (See Id. ¶ 36). She
arrived at Metro West at approximately 12:43 p.m. on November
5. (See SIAB Mem. ¶ 36). She was placed with
the general population in Three Alpha Wing. (See 2d
Am. Compl. ¶ 37). A female officer, referred to as
Officer Jane Doe No. 1, placed Pichardo in the cell. (See
Id. ¶ 38). Officer Doe No. 1 apparently
acknowledged Pichardo was female, but said only “you
are a woman. Good luck if you are alive tomorrow.”
(Id. (internal quotation marks omitted)).
her placement in Three Alpha Wing, Pichardo was surrounded by
approximately 40 men and harassed by the male inmates.
(See Id. ¶ 39). Pichardo later told the
investigator she felt “psychologically assaulted
because everyone looked at her as if she was a
piñata.” (Id. (citation,
internal quotation marks omitted)). Pichardo was too afraid
to use the all-male bathroom and instead urinated on herself.
(See Id. (citation omitted)). At some point, she
asked an unknown female officer to move her out of Three
Alpha Wing “because she was going to go crazy.”
(Id. (citation omitted)).
Officer Tavarez Carter, who was in charge of conducting head
counts in Three Alpha Wing, noted Pichardo looked scared to
get off her bunk and did not want to interact with other
inmates. (See Id. ¶ 41 (citation omitted)).
According to Officer Carter, Pichardo was assigned to Bunk 2,
which is closest to the supervising officers. (See
Resp. 6). Officer Carter told the investigator Pichardo was
specifically assigned to Bunk 2 “because whenever there
is someone that looks like a female, we always put [th]em to
the front so that the officer can watch them.”
(Id. (alteration added; citation omitted)).
November 5, 2013, Pichardo's family members, in their
attempts to contact Pichardo, questioned corrections officers
at TGK as to why Pichardo was housed at an all-male facility.
(See SIAB Mem. ¶ 6). As a result of their
prodding, a corporal at TGK contacted the Shift Commander who
initiated an investigation into Pichardo's sex. (See
id.). Pichardo was strip-searched a second time, this
time by non-party Nurse De La Espriciella in the North Clinic
at Metro West. (See 2d Am. Compl. ¶ 42). This
second strip search took place between 6:50 p.m. and 8:23
p.m. on November 5. (See SIAB Mem. ¶ 36).
Pichardo claims there were several male corrections officers
present, laughing at her during the search. (See 2d
Am. Compl. ¶ 42). Pichardo also recalls photographs were
taken of her while she was undressed. (See id.).
Following this strip search, which confirmed Pichardo's
biological sex to be female, Pichardo was separated from the
general male population. (See id.).
was subsequently returned to TGK and housed in an all-female
unit. (See SIAB Mem. ¶ 6). On November 6, 2013,
Pichardo was released from MDCR to the custody of the United
States Marshal Service. (See 2d Am. Compl. ¶
and her husband, Cesar Cristobal Veloz Tiburcio, filed their
initial Complaint [ECF No. 1] on September 13, 2016.
Plaintiffs have since twice amended the complaint,
the Second Amended Complaint is the current operative
Second Amended Complaint contains 15 claims for relief under
both state and federal law, against multiple Defendants. The
federal law claims, all brought under 42 U.S.C. section 1983,
include: (1) four counts of failure to intervene (Count I -
Sgt. Price, Count II - Officer Jane Doe No. 1, Count III -
Officer Carter, and Count IV - Corporal Johnson); (2) three
counts of deliberate indifference (Count V - Nurse Harris,
Count VI - Dr. Rodriguez-Garcia, and Count VII - Officer Jane
Doe No. 1); and (3) one count of violation of privacy rights
and unreasonable searches against Miami-Dade County (Count
VIII). To avoid repetition, the Order addresses the
particulars of each of these claims in the Analysis section,
section III, below.
state law claims include: one count of negligence against the
corrections officers and Miami-Dade County (Count IX); one
count of negligence against the Public Health Trust (Count
X); one count of negligent infliction of emotional distress
against the corrections officers and Miami-Dade County (Count
XI); one count of negligent infliction of emotional distress
against Nurse Harris, Dr. Rodriguez-Garcia, and the Public
Health Trust (Count XII); one count of negligent hiring and
retention against the Public Health Trust (Count XIII); one
count of violating Section 901.211, Florida Statutes, against
Miami-Dade County (Count XIV); and one count of loss of
consortium brought by Pichardo's husband against all
Defendants (Count XV). Because the Court concludes dismissal
of the federal claims is appropriate, and it will not retain
jurisdiction over the remaining state law claims, this Order
does not address the latter claims' sufficiency.
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (alteration added) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require
‘detailed factual allegations, ' . . . it demands
more than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Id. (alteration added) (quoting
Twombly, 550 U.S. at 555). Pleadings must contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citation
omitted). Indeed, “only a complaint that states a
plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556). To meet this plausibility
standard, a plaintiff must “plead factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678 (alteration added) (citing
Twombly, 550 U.S. at 556).
apply this standard by (1) eliminating allegations which
amount to “mere legal conclusions, ” Am.
Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290
(11th Cir. 2010) (citation omitted); and (2) assuming the
veracity of well-pleaded factual allegations and determining
whether those “plausibly give rise to an entitlement to
relief, ” id. (internal quotation marks and
citation omitted; alteration added).
from the factual allegations of the Second Amended Complaint,
which are construed in the light most favorable to the
plaintiff, see Brooks, 116 F.3d at 1369 (citation
omitted), the Court also properly considers the SIAB
Memorandum and witness statements at the motion to dismiss
stage (see note 2, supra). And where the
exhibits “contradict the general and conclusory
allegations of the pleading, the exhibits govern.”
Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir.
2009) (quoting Griffin Indus., Inc. v. Irvin, 496
F.3d 1189, 1206 (11th Cir. 2007) (holding, because the police
reports attached to the complaint contradicted
plaintiff's allegations about what the officers saw, the
court would “not credit [plaintiff's]
allegation” (alteration added))). This is because when
a plaintiff relies on an attachment to support its
allegations, courts may similarly depend on it to establish
the facts. See Id. at 1292 (citing Thompson v.
Ill. Dep't of Prof'l Regulation, 300 F.3d 750,
754 (7th Cir. 2002) (“The fact remains that where a
plaintiff attaches documents and relies upon the documents to
form the basis for a claim or part of a claim, dismissal is
appropriate if the document negates the claim.”)).
Defendant corrections officers move to dismiss the federal
law claims against them on the grounds they did not violate
Pichardo's clearly established constitutional rights and
so are entitled to qualified immunity. (See Mot.
5-12). Defendants further argue the section 1983 claim
against Miami-Dade County should be dismissed because
Plaintiffs have failed to properly satisfy the
Monell standard, as is required to bring a
section 1983 claim against a local government entity.
(See Id. 12-16). Nurse Harris and Dr.
Rodriguez-Garcia contend because the Second Amended Complaint
fails to state a claim of deliberate indifference, and there
is no resulting constitutional violation, the medical staff
Defendants are also entitled to qualified immunity. (See
not necessary to resolve the sufficiency of the
pleading's federal claims, the Court notes two additional
arguments raised by Defendants. Defendants argue Defendants
Carlos Migoya and Daniel Junior should be dismissed because
the Second Amended Complaint does not contain a single
allegation involving them, and Counts II and VII must be
dismissed as to the multiple Doe Defendants under Rule 4(m).
(See Id. 2 nn.1-2). The Court addresses these
arguments in turn.
Claims Subject to the Qualified Immunity Defense
assert Sgt. Price, Officer Carter, Cpl. Johnson, Nurse
Harris, and Dr. Rodriguez-Garcia are all entitled to
qualified immunity. (See Id. 8-12, 18-19).
complaint is subject to dismissal under Rule 12(b)(6) when
its allegations, on their face, show that an affirmative
defense bars recovery on the claim.” Cottone v.
Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (citing
Marsh v. Butler Cty., 268 F.3d 1014, 1022 (11th Cir.
2001) (en banc). Once a qualified immunity defense has been
asserted, unless Plaintiffs' “allegations state a
claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before
the commencement of discovery. Absent such allegations, it is
appropriate for a district court to grant the defense of
qualified immunity at the motion to dismiss stage.”
Id. (alterations, ellipses, internal quotation
marks, and citations omitted); see also Bloom v.
Alvereze, 498 F. App'x 867, 872 (11th Cir. 2012)
(“[A] defense of qualified immunity may be addressed in
a motion to dismiss, which will be granted if the complaint
fails to allege the violation of a clearly established
constitutional right.” (internal quotation marks and
citation omitted; alteration added)).
immunity protects government officials “from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional
rights.” Iqbal, 556 U.S. at 672 (internal
quotation marks omitted) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). It
“balances two important interests - the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). “Qualified immunity offers
complete protection for government officials sued in their
individual capacities if their conduct does not violate